Weekly Update for Government Contractors and Commercial Businesses – November 23, 2022

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GOVERNMENT CONTRACTS

SBA Adjusts Economic Disadvantage Thresholds for 8(a) and EDWOSB Programs and Monetary-Based Size Standards, 11.18.22, Meghan Leemon and James Rhodes
Per an interim final rule published on November 17, 2022, the Small Business Administration (SBA) is adjusting the three economic disadvantage thresholds applicable to the 8(a) and Economically Disadvantaged Women-Owned Small Business (EDWOSB) programs for inflation. SBA’s interim final rule will also increase its receipts-based small business size standards. These changes will be effective on December 19, 2022. SBA’s changes should be welcomed by small businesses and participants in the 8(a) and EDWOSB programs and those looking to apply. Read more here.

Act Fast: ESOP-Owned Defense Contractors Eligible for Sole-Source Awards in New DOD Pilot Program, 11.17.22, Kevin Barnett
The Department of Defense recently launched a pilot program allowing Contracting Officers (CO) to award sole-source follow-on contracts to contractors owned 100% by an employee stock ownership plan (ESOP). Although sole-source awards already exist for specific types of small businesses, this program marks the first time that the government has authorized a set-aside program for ESOPs. Like most pilot programs, however, the ESOP set-aside program is limited, with strict eligibility criteria and only nine contracts available. Considering these limitations, ESOPs interested in participating in the program should act fast to determine whether they qualify and discuss participation with their CO. Read more here.

GSA’s OASIS+ MAC Draft Request for Proposal
The General Services Administration (GSA) released its draft Request for Proposal (RFP) for the OASIS+ Program. GSA is seeking feedback from industry on identity verification, cybersecurity supply chain risk management, performance assessment, the ten-year period of performance, and sustainability. Comments on the draft RFP are due on December 31, 2022. Read more here.

GSA Optimizes Opportunities for Small Businesses Through SBA 8(a) Partnership Agreement
The General Services Administration (GSA) and Small Business Administration (SBA) recently signed a new 8(a) Program Partnership Agreement (PA) designed to increase 8(a) contracting opportunities and make it easier for GSA customers to use the Multiple Award Schedule (MAS) program to access solutions from 8(a) contractors. According to GSA, full implementation of this PA will provide the following benefits:

• increased opportunities for 8(a) contractors that allow them to compete in a safe set-aside environment;
• access to a large number of 8(a) contractors and other socioeconomic contractors to meet socioeconomic goals for a wide range of products and services;
• increased ordering flexibility under the MAS program, including sole source awards to 8(a) firms;
• streamlined acquisition processes to incentivize agencies to use 8(a) solutions; and
• standardized processes for reaching agreement on acquisition strategies between GSA and SBA.

GSA anticipates implementation of the PA in the spring of 2023. Read more here.

White House Gives Federal Agencies May 2023 Deadline to Provide List of Quantum-Vulnerable Cryptographic Systems
The Office of Management and Budget has given federal agencies until May 4, 2023, to provide an inventory of assets containing cryptographic systems that could be cracked by quantum computers. According to a recent memo, the White House set out the deadline and said government departments would be expected to subsequently provide an annual vulnerability report until 2035. The fresh guidance comes amid fears that significant leaps in quantum technology being made by countries hostile to the United States, including China, could allow existing forms of secure encryption to be cracked much more quickly. Read more here.

Notice of Updated NAICS Codes for Use in the Women-Owned Small Business Federal Contract Program
The Small Business Administration (SBA) gave notice that it is updating the North American Industry Classification System (NAICS) codes authorized for use in the Women-Owned Small Business Federal Contracting Program (WOSB Program). This update is being made to reflect the Office of Management and Budget’s NAICS revision for 2022, identified as NAICS 2022. These changes would impact 85 of the 2017 NAICS codes eligible for use under the WOSB Program. The designations of industries contained in SBA’s notice apply to all solicitations issued on or after October 1, 2022. Read more here.

Acquisition Regulation System and Research and Development
The Department of Veterans Affairs (VA) issued a final rule that amends the VA Acquisition Regulation (VAAR) to align with the Federal Acquisition Regulation. Specifically, the rulemaking revises VAAR coverage concerning the VAAR System and Research and Development. It will also revise affected parts concerning Definitions of Words and Terms, Required Sources of Supplies and Services, Types of Contracts, and Solicitation Provisions and Contract Clauses. The final rule will be effective December 21, 2022. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: 5 W’s of Bid Protests: The Who, What, When, Where, and Why, November 29, Katie Burrows and Eric Valle. Read more here.

WEBINAR: Termination for Convenience: How to Prepare Your Settlement Proposal, December 15, Peter Ford and Meghan Leemon. Read more here.

LABOR & EMPLOYMENT

DOL Seeks Public Comments on Proposed Improvements to Voluntary Fiduciary Correction Program for Employers
The Department of Labor announced that its Employee Benefits Security Administration has proposed updates to its Voluntary Fiduciary Correction Program, including a self-correction component for employers who fail to send employee salary withholding contributions or participant loan repayments to retirement plans in a timely manner. “The Employee Benefits Security Administration is seeking public comments on planned changes to the Voluntary Fiduciary Correction Program that will make it easier and more cost effective for plan officials to correct violations, and for the department to improve compliance,” explained Assistant Secretary for Employee Benefits Security Lisa Gomez. Comments on the proposed amendments are due January 20, 2023. Read more here.

LITIGATION & DISPUTE RESOLUTION

Florida Birth-Related Neurological Injury Compensation Plan and Association to Pay $51 Million to Resolve False Claims Act Allegations
The Florida Birth-Related Neurological Injury Compensation Plan and its administrator, the Florida Birth-Related Neurological Injury Compensation Association (NICA), have agreed to pay $51 million to resolve allegations that they violated the False Claims Act by causing participants to submit their healthcare claims to Medicaid rather than NICA, in violation of Medicaid’s status as the payer of last resort under federal law. The civil settlement resolves a lawsuit filed and pursued by Veronica Arven and the estate of Theodore Arven III against NICA under the qui tam or whistleblower provisions of the False Claims Act, which permit a private party to file a lawsuit on behalf of the United States and receive a portion of any recovery. The Arvens will receive $12,750,000 as their share of the recovery in this case. Read more here.